TMI Blog2019 (10) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the Custom Fleet Stations, licensed by the Customs, be released. Till the date of release of goods, demurrage charges be waived. Other disputes raised in the writ petitions, would be decided. The request of the writ petitioners, is reasonable and therefore, hope that the respondents would implement the interim order of this Court, without any delay - petition dismissed. - W.P.Nos.16126, 16131, 16133, 16137, 16206, 16208, 16212, 16215, 16782, 16788, 16790, 20803, 20809, 20910, 21199, 20848 and 20982 of 2019 - - - Dated:- 10-9-2019 - W.P.Nos.16126, 16131, 16133, 16137, 16206, 16208, 16212, 16215, 16782, 16788, 16790, 20803, 20809, 20910, 21199, 20848 and 20982 of 2019 and W.M.P.Nos.15875, 15878, 15879, 15880, 16390, 16392, 16395, 15916, 15919, 15922 and 15924, 19993, 19996, 20110, 20406, 20164 and 20059 of 2019 S.Manikumar And Subramonium Prasad, JJ. JUDGMENT S.manikumar, These writ petitions are filed seeking a writ of declaration to declare para 2.31 of the foreign Trade Policy (2015-2020) issued by the 4th respondent as ultra vires, unconstitutional, excessive of authority and without jurisdiction, in so far as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the DGFT/4th respondent a subordinate authority cannot be legally sustained and for this reason also para 2.31 of the FTP is necessarily to be held as invalid and unenforceable. (iv) Without further prejudice to the above contention would further submit that when para 2.07 concerning Principles of Restrictions incorporated in the FTP 2015 - 20, itself bring out the basis on which the restrictions can be imposed on the import of any goods into India and since none of the principles specified therein attracted the import of the subject goods and in facts stands against the policy of the Central Government as expressed in the Hazardous and other Waste (Management and Transboundary Movement) Rules, the provisions contained in para 2.31 of the FTP imposing the restriction of permitting import of the used MFDs only against an authorization is bad and unenforceable. (v) With regard to the question of applicability of the Foreign Trade Policy as regards seeking of authorization in respect of the goods under import in terms of para 2.31 of FTP, the petitioner relies upon the copy of the Office Memorandum issued under F.No.01/93/180/95/AM-10/PC-II(B) (e-2911)/473 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in possession of the EPR granted by the CPCB etc., requiring the clearance of the goods without any permission as contemplated under rule 13 (2) of the said Rules. (ix) As regards the question of registration for the goods under the Requirements for Compulsory Registration for the import of the second hand Digital Multifunction Print Copying Standalone Heavy duty Machines falling under ITC (HS)/CTH Code 8443 31 00, which the petitioner reasonably understand is being insisted by the customs based on a communication under reference D.O.No.37(6)/2016-IPHW dated 06.12.2016 said to have been received from Shri. Rajiv Bansal, Joint Secretary followed by another Office Memorandum vide ref. no.37(10)/2016-IPHW dated 10.03.2017 issued by Mrs.Asha Nangia, Director, MeitY, does not merit consideration in the light of the recordings in the subsequent minutes of the meeting held on 17.11.2017 chaired by the Additional Secretary MeitY an officer higher in rank recommending for appropriate changes in the CRO and concurring to clearance of the imported used MFDs without safety certification as is hitherto being done since 2012. (x) The schedule attached to the CRO having no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the Printers Scanners and not in respect of the digital multifunction print and copying machines all the more the insistence for the compulsory registration under the CRO may not be proper or correct. (xiv) The respondents herein ought to have seen that since the goods in question are not prohibited goods within the meaning of the Act and in view of the same no absolute confiscation of the goods could be ordered, the respondents atleast ought to have ordered for the provisional assessment and release of goods in terms of sec. 18 and sec. 110 A (as prolonged detention amounts to seizure) r/w.125 of the Customs Act, 1962. (xv) The issue pertaining to release of goods in caseof improper import of goods came up for consideration before this Court in the case of City Office Equipment, wherein this Court vide its order dated 08.10.2014 reported in 2015 (316) E.L.T. 199 (Mad.) after considering the various provisions of the Customs Act, 1962 discussed in the said judgment of having not providing for the disposal of the confiscated goods release of the goods in terms of Section 110 A of the Customs Act, 1962, which judgment on appeal by the department wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Yakub Ibrahim Yusuf vs. Commissioner of Customs, Mumbai reported in 2011 (263) ELT 685 (Tri. Mum), which has been accepted by the department, the position of law is now well settled that the discretion provided under Section 125 of the Customs Act require the proper officer to allow the redemption of the goods even if they are prohibited goods and that only goods expressly prohibited are not be permitted the redemption, there is no substance in the question raised being admitted as a substantial question of law to be answered by this Court. 3. Pending disposal of the writ petitions, petitioners in all the writ petitions, has filed the writ miscellaneous petitions, for the following interim directions:- (i) W.M.P.No.15875 of 2019 in W.P.No.16126 of 2019: To direct the respondents 1 to 3 herein, to provisionally assess and permit the clearance of 393 units of the secondhand Digital Multifunction Print Copying Machines imported vide Bill of Entry No.8113230, dated 19.09.2018, upon the payment of applicable duties of Customs on the enhanced assessable value as appraised by the approved chartered engineer. (ii) W.M.P.No.15878 of 2019 in W.P.No.16131 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed assessable value as appraised by the approved chartered engineer. (viii) W.M.P.No.15924 of 2019 in W.P.No.16215 of2019: To direct the respondents 1 to 3 herein, to provisionally assess and permit the clearance of 92 units of the secondhand Digital Multifunction Print Copying Machines imported vide Bill of Entry No.9188484, dated 10.12.2018, upon the payment of applicable duties of Customs on the enhanced assessable value as appraised by the approved chartered engineer. (ix) W.M.P.No.16390 of 2019 in W.P.No.16782 of 2019: To direct the respondents 1 to 3 herein, to provisionally assess and permit the clearance of 126 units of the secondhand Digital Multifunction Print Copying Machines imported vide Bill of Entry No.9188377, dated 10.12.2018, upon the payment of applicable duties of Customs on the enhanced assessable value as appraised by the approved chartered engineer. (x) W.M.P.No.16392 of 2019 in W.P.No.16788 of 2019: To direct the respondents 1 to 3 herein, to provisionally assess and permit the clearance of 491 units of the secondhand Digital Multifunction Print Copying Machines imported vide Bill of Entry No.7125940, dated 07.07.2018, upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a detailed counter affidavit, which is extracted hereunder::- (i) 4th respondent submitted that this counter affidavit answers all the interim applications filed in the respective writ petitions wherein the subject matter is import of goods and it's release in violation the para 2.31 of the Foreign Trade Policy (2015-2020). (ii) Present affidavit is filed opposing the interim prayer for the release of imported goods and for the limited purpose of furnishing the details with regard to the status of the applications filed by the writ petitioners seeking authorization from DGFT for importing second hand Digital Multi function Printing and copying Machines and Second hand Photocopier Machines which is mandated among other conditions imposed under the policy guidelines issued by DGFT as goods are restricted for import in terms of Paragraph 2.31 of the Foreign Trade Policy (2015 - 2020). The details of the applications submitted by the writ petitioners stated in the counter affidavit. (iii) Present writ petitioners are bound to be aware of the status of their applications submitted for Authorization as the entire process including the submission of applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions and requirement as may be prescribed, be liable to confiscation by the Adjudicating Authority. (vii) In the aforesaid background if the goods imported in violation Foreign Trade Policy are ordered to be released, then the same would not only defeat the very Foreign Trade Policy itself but also take away the powers of the Adjudicating Authority conferred under section 11(8) of the Foreign Trade Act, 1992 and preciously for this reason, the Hon'ble Supreme Court in the case relied upon by the petitioner in Civil Appeal No(s). 1057 of 2019 (Commissioner of Customs Vs M/s. Atul Automations Pvt Ltd.) etc in the order dated 24.01.2019 has ordered as follows in operative portion at para 13. We therefore find no reason to interfere with the impugned orders. In the statutory scheme of the Foreign Trade Act as discussed, we further find no error in the penultimate direction to the respondents for the deposit of bound without sureties for 90% of the enhanced valuation of the goods leaving it to the DGFT to decide whether confiscation needs to be ordered or release be granted on redemption at the market value, in which event the respondents shall be entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion from the DGFT as contemplated under para 2.31 of the FTP (2015-2020) is grossly incorrect, unacceptable and unsustainable in view of the fact that the Hon ble Supreme Court in the Atul Automation Private Limited case have held that the impugned machines are only restricted for import and are not prohibited and accordingly approving the directions issued by the Hon ble Kerala High Court in para 41 and 42 of the judgment. The Petitioners submitted that the Hon'ble Bench taking note of the said position of law as declared by the Supreme Court and also additionally considering that the restrictions imposed has been challenged by the petitioner in these petitions unlike the case before the Hon ble Supreme Court where the importer had acceded to the violation in not producing the authorisation, directed the release of the goods imported on payment of entire duty on the value appraised by the Charted Engineer vide their interim order dated 13.02.2019. The Hon ble Bench, while considering the modification petition moved by the Customs seeking modification of the order dated 13.02.2019 taking note of the above position of law dismissed the Modification Application of the Customs vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d IT goods have been specifically notified for compliance with CRO. MFD itself has not been specifically notified for compliance with the CRO. This position of law was also upheld by the order of the Hon ble Bench of the Andhra Pradesh High Court, vide judgment in W.P.No.2728 of 2018 which was also accepted by the Ministry of Finance, vide letter dated 16.06.2018. Further, the Chennai Bench of the Tribunal, vide order, dated 11.05.2019, ordered that CRO cannot be insisted upon in respect of MFDSs imported by one Value Mark Traders Private Limited which was again accepted by the Commissioner of Customs, Chennai and the goods of the importer cleared. In view of this above factual and legal position the respondent cannot be heard to argue as if the CRO applied to these MFDs. (iv) Petitioners further submitted that they have fully complied with the requirements of the Hazardous and other Waste (Management and Transboundary Movement) Rules and have produced all the required documents and therefore are entitled to the Free trade of the subject goods as notified in the above latest Rules, by the Ministry of Environment, Forest and Climatic Changes who have been nominated as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd perused the material on record. 8. Earlier, in similar matters after hearing the learned counsel for the parties, on the issue of provisional release, in W.P.Nos.15621 to 15623 of 2018, dated 13.02.2019, we ordered provisional release. Subsequently, the department filed modification petition, and the same was dismissed by order dated 09.04.2019. The operative portion of the order reads as follows: 3. Seeking modification of the abovesaid common order, made in WP.Nos.15621 to 15623 of 2018, Commissioner of Customs, Chennai-II Commissionerate, Chennai and two others have filed modification petitions in WMP Nos.9704, 9706 and 9714 of 2019, on the grounds inter alia that the constitutional validity of para 2.31 of the Foreign Trade Policy (FTP) 2015-2020, ultimately has been upheld by the Hon'ble Supreme Court and in the light of the above decision, Customs Department would be put to undue hardship, since it is only an executing authority, whose powers are limited to the conditions and restrictions imposed by the DGFT and the Central Government under the Foreign Trade (Development and Regulation) Act, 1992. 4. Contending inter alia that res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the release on payment of the amounts as above, because the fine that could be imposed by the DGFT for redemption, is the market value for which we have made provision by way of security bond. If at all the DGFT imposes fine then the 10% imposed by the Commissioner shall be given set-off since then there was no ground on which the Commissioner could have imposed a redemption fine. If not; the violation on import shall be sufficient ground for the redemption fine, as imposed by the Commissioner; since the DGFT either has to impose fine at the market value or decide not to confiscate the goods and then release the goods without any condition. The importer would be entitled to raise all contentions before the DGFT and also avail of the appellate remedies available under the Foreign Trade Act. 7. Ms.Aparna Nandakumar, learned counsel for the petitioners, also drew the attention of this Court to paragraph No.13 of the judgment of the Hon'ble Supreme Court, reported in 2019 SCC OnLine SC 70, in a Civil Appeal arising out of the judgment of the Kerala High Court, and the same is extracted hereunder. 13. We therefore find no reason to interfere with the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree on order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 2. To whom applications for review may be made. Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of1956), s.14. 3. Form of applications for reviewprovisions as to the form of preferring appeals shall apply mutatis mutandis, to applications for review. 4. Application where rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same. (3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party. 8. Registry of application granted, and order for rehearing When an application for review is granted, a note thereof shall be made in the register and the Court may at once rehear the case or make such order in regard to the rehearing as it thinks fit. 9. Bar of certain applications No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained. Rule 114. Review Subject as aforesaid, any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Court, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Engineer, would come to around ₹ 2 lakhs and above. Goods need not be detained for the disputed amount to be paid. (b) Mr.AR.L.Sundaresan, learned counsel appearing for Mr.N.Viswanathan, learned counsel for the petitioners submitted that the disputed amount would be paid in cash, to the competent authority. (c) Petitioners are directed to pay the duty applicable on the enhanced value, as determined by the Chartered Engineer. On payment of the same, goods detained in the Custom Fleet Stations, licensed by the Customs, be released. Till the date of release of goods, demurrage charges be waived. Other disputes raised in the writ petitions, would be decided. 10. After pronouncement of the interim order, Mr.N.Viswanathan, learned counsel for the petitioner in all the writ petitions, submitted that a direction be issued to the respondents to release of goods provisionally, as expeditiously as possible, within a period of one week, from the date of receipt of a copy of this order. 11. Department has not challenged the earlier interim order of this Court, directing provisional release of goods, to the Hon'ble Supreme Court and consistency ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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